On March 27, Bill 42: An Act to prevent and fight psychological harassment and sexual violence in the workplace1 (the "Bill") received royal assent.
The Bill proposes various amendments to labour legislation, namely to:
- better protect workers who are victims of psychological harassment and sexual violence in their workplace; and
- provide a framework for the recourses to ensure such protection.
Employers must therefore adapt their policies and practices in managing such files, failing which they will be subject to recourse or fines, as applicable.
In order to ensure compliance with their obligations, the purpose of this bulletin is to review the amendments made, but also to identify the impact of these changes on businesses operating in Québec and subject to provincial jurisdiction, and to specify the dates on which these obligations will come into force following royal assent of the Bill.
Act Respecting Occupational Health and Safety2
a. Definition of "Sexual Violence"
The Bill introduces the definition of "sexual violence", which reads as follows:
means any form of violence targeting sexuality or any other misconduct, including unwanted gestures, practices, comments, behaviours or attitudes with sexual connotations, whether they occur once or repeatedly, including violence relating to sexual and gender diversity.3
In practical terms, this new definition of sexual violence appears to be very broad, and it will certainly leave plenty of room for interpretation, particularly given the legislator's use of the term "misconduct". The range of situations that may fall within the parameters of this definition will likely be significant, so that employers will have vast prevention and intervention obligations that will require rapid implementation.
It will therefore be advisable for any employer subject to these obligations to make all its personnel, and particularly all personnel in charge of human resources, aware of the scope of the new obligations in order to discharge its burden of preventing and putting an end to a situation of sexual violence.
The new definition has come into force on March 27, 20244.
Law On Industrial Accidents and Occupational Diseases (LATMP)5
a. Presumption of Employment Injury
The Bill amends the LATMP by adding two new presumptions of employment injury intended to facilitate the recognition of an employment injury resulting from sexual violence in the workplace.
As such, the Bill provides for the creation of new provisions under which the existence of an employment injury will be presumed in the following situations:
- Injuries or diseases shall be presumed to have arisen out of or in the course of the worker's work when it results from sexual violence suffered by the worker and committed by the worker's employer, one of the employer's officers in the case of a legal person or one of the workers whose services are used by such employer6;
- Diseases occurring within three months after the worker has suffered sexual violence in the workplace will be presumed to be an employment injury7.
These amendments to the current regime under the LATMP will come into force six months after the date of royal assent, on September 28. 20248.
b. Access to Medical Record
The Bill also amends the terms and conditions governing the right of access to a medical record constituted with the CNESST, including the disclosure of information relating to a worker's medical record to his employer in the context of contesting an employment injury claim. As soon as a health professional shares medical information about a worker's medical file with his employer, he can only communicate, by way of a summary of the file, the information that is necessary for the employer's contestation.9 Employers can therefore no longer expect to receive a complete medical portrait of the file.
To the extent that a health care professional violates this necessity requirement, or if an employer wishes to illegally obtain an employee's medical record, fines may be imposed. These may vary from $1,000 to $5,000 if the offence is committed by a natural person and from $2,000 to $10,000 in other cases, such as in the case of a legal person.10
In light of the aforementioned, we recommend that employers ensure that they mandate, when appropriate, expert physicians with adequate knowledge of the principles of the LATMP regime in order to obtain top quality recommendations in a context where access to medical records of injured workers will be further restricted. Such a restriction involves risks that a designated physician could limit the information provided, to the detriment of the employer's sound management of its records and its right to make full and complete defence. The mandates entrusted to these experts must also be drafted in clear terms, so as to obtain the clearest medical recommendations for proper and efficient management of these files.
These provisions will come into force six months after the date of royal assent, on September 28, 202411.
c. Claim Period for Victims of Sexual Violence
For an occupational injury or disease resulting from sexual violence within the meaning of the LATMP, the deadline for filing a claim with the CNESST will be extended to two (2) years12. By means of a reminder, currently, the deadline for filing a claim with the CNESST is six (6) months.
Considering the time that may elapse between the occurrence of such conduct and the time granted to workers to file a claim, we recommend that employers document any facts that may fall within these parameters as soon as they become aware of them, in order not only to fulfill their preventive obligations, but also to keep track of events that have occurred in the establishment over the years. Maintaining such a registry will allow employers to ensure sound claims management and easily identify files that need to be contested.
In the event that such a claim is allowed, it should be noted that the worker will be required to reimburse the wage-loss insurance premiums collected, which will have to be converted for the entire period into an income replacement indemnity.
This provision will come into force six months after royal assent, on September 28, 202413.
d. Imputation Rule
The Bill amends the rule already established in the LATMP14 regarding the imputation of employment injuries.15 As soon as an employee's employment injury results from sexual violence, benefits will be charged to employers in all units, thus making an exception to the general rule.
This amendment has come into force on March 27, 202416.
Act Respecting Labor Standards (ARLS)17
a. Employer's Obligations
Although any employer operating in Quebec and under provincial jurisdiction already had an obligation to prevent and stop psychological harassment within the meaning of the ARLS long before Bill 42 was introduced, its text broadens an employer's obligations by specifying that it must prevent and stop psychological harassment by "any person"18.
An employer's obligations now expressly extend to third parties in the workplace, such as the employer's customers, subcontractors and suppliers.19
This inclusion has come into force on March 27, 202420.
b. Protection Against Reprisals
The Bill established protection against reprisals for employees who report a situation of psychological harassment against another employee or by collaborating in the process of a psychological harassment complaint.
To the extent that an employee is the victim of reprisals following the filing of a psychological harassment complaint or following his or her collaboration in a psychological harassment investigation, the employee could file a complaint with the CNESST for a prohibited practice against the employer.21
These amendments have come into force on March 27, 202422.
c. Psychological Harassment Prevention and Complaint Processing Policy
The Bill now specifies the elements that an employer must include in its policy on the prevention and treatment of psychological harassment. The employer must include the following:
- The methods and techniques used to identify, control and eliminate the risks of psychological harassment;
- Information and training programs for employees on the prevention of psychological harassment that are offered to employees as well as to persons designated by the employer to handle a complaint or report;
- Recommendations regarding the conduct to be adopted by employees during work-related social events;
- The process for filing a complaint, a report or providing information or documents to the employer regarding the psychological harassment, as well as the identity of the person designated to handle it and the details of the follow-up that must be given by the employer following the filing of a complaint, report or other document;
- The measures put in place by the employer to protect employees who are victims of psychological harassment and any person who participated in the complaint process;
- The process for handling a psychological harassment situation and an investigation;
- Measures put in place by the employer to ensure the confidentiality of a complaint;
- Record retention periods for handling psychological harassment, at least two years.23
We recommend that employers ensure that their policies are reviewed by subject matter experts immediately to ensure compliance before the new requirements come into effect. In addition, once updated, every employer should ensure to:
- disseminate this information to current and future employees;
- obtain acknowledgement of receipt from employees; and
- provide training on the revised policy to all employees, as well as specific training to all managers responsible for its application.
These amendments will come into force six months after the date of royal assent, on September 28, 202424.
Moreover, Bill 42 provides that all policies will be an integral part of the employer's prevention program or action plan under the OHSA. As such, this requirement will come into force on the date set by the Government, no later than October 6, 2025, which is at the same time as the coming into force of the amendments to the health and safety regime concerning prevention mechanisms25.
d. Amnesty Clauses
The Bill will now prohibit the application of amnesty clauses with respect to disciplinary measures imposed on an employee for misconduct involving physical, psychological or sexual violence.
Although it is common in Quebec to find collective agreements containing amnesty clauses26, the Bill now provides that when imposing disciplinary measures relating to physical, psychological or sexual violence, an employer may take into account past disciplinary measures imposed for misconduct of this nature, despite the presence of an amnesty clause in a collective agreement or in a decree.27
We recommend for all employers to immediately inform their personnel responsible for decision-making in the context of disciplinary measures of this, considering the major impact of this legislative amendment, which has come into force on March 27, 202428.
e. Punitive Damages
At the moment, in the event of an employment injury recognized under the LATMP, a Tribunal adjudicating a parallel harassment complaint under the ARLS should not impose punitive or moral damages on the employer based on the very premise that it is a no fault regime. Such moral and punitive damages would only be awarded when the judge finds psychological harassment, but in the absence of an employment injury within the meaning of the LATMP.
However, the Bill will now reserve the right for the Tribunal to order an employer to pay punitive damages to an employee who is a victim of psychological harassment, even though it is also recognized that the employee is a victim of an employment injury resulting from that harassment29. In short, employees who are victims of psychological harassment will be able to claim punitive damages in addition to any compensation under the LATMP because of an employment injury related to a harassment situation in their workplace.
We therefore recommend that employers maximize prevention efforts and intervene quickly to put an end to any reprehensible behaviour in order to minimize the risk of being forced to pay such punitive damages. Proper contemporary documentation with the events in potentially litigious files will enable an employer to provide evidence on all of its interventions.
This amendment has come into force on March 27, 2024.
Impact for Employers
For any employer operating in Quebec and under provincial jurisdiction, the extent of the impact of the Bill's coming into force will depend on its current policies and practices regarding psychological harassment and sexual violence in the workplace. As such, the above recommendations should be considered by these employers to ensure compliance with the applicable legislative requirements.
In the event of non-compliance, employers are liable to fines30 and recourse31 before the Arbitration Tribunal or the Administrative Labour Tribunal, depending on the circumstances.32
Conclusion
Our dedicated team is available to assist you with any request related to the coming into force of the amendments provided for in the Bill, particularly if you have questions about your obligations as an employer or if you need support in reviewing / drafting your prevention policy.
Footnotes
1. An Act to Prevent and Fight Psychological Harassment and Sexual Violence in the Workplace, 1st Sess, 43rd Legislation (Qc.)
2. RLRQ c. S-2.1.
3. Supra, note 1, art. 33.
4. Supra, note 1, art. 45 al. 1.
5. RLRQ c. a-3.001.
6. Supra, note 1, art. 4.
7. Ibid.
8. Supra, note 1, art. 45 (1).
9. Supra, note 1, art. 7.
10. Supra, note 1, art. 16.
11. Ibid.
12. Supra, note 1, art. 9, art. 10 and art. 11.
13. Supra, note 1, art. 45(1).
14. Supra, note 4, art. 327.
15. Supra, note 1, article 12.
16. Supra, note 1, art. 45 al. 1.
17. RLRQ c. N-1.1.
18. Supra, note 1, art. 18.
19. Séance des commissions parlementaires – étude détaillée du projet de loi n° 42, Loi visant à prévenir et à combattre le harcèlement psychologique et la violence à caractère sexuel en milieu de travail, 43e légis., 1re sess., 15 février 2024.
20. Supra, note 1, art. 45 al. 1.
21. Supra, note 1, art. 21.
22. Supra, note 1, art. 45 al. 1.
23. Supra, note 1, art. 18.
24. Supra, note 1, art. 45 (2).
25. Supra, note 1, art. 45 (2).
26.These clauses provide that, after a certain period of time has elapsed, a disciplinary measure will be removed from the file of an employee (e) and may no longer be invoked against him or her as part of the scale of sanctions.
27. Supra, note 1, art. 20.
28. Supra, note 1, art. 45 al. 1.
29. Supra, note 1, explanatory notes and art. 24.
30. Supra, note 1, art. 16.
31. Supra, note 1, art. 21.
32. Supra, note 1, art. 21.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
